Former President Trump this week tossed a bone to immigration hawks, promising to issue an executive order rescinding birthright citizenship if he returns to the White House.
The pledge drew groans from pro-immigration advocates, who quickly pointed out Trump only toyed with trying the move for four years in office, but it heightened fears about the mainstreaming of radical anti-immigrant rhetoric.
“It makes for a nice talking point for the white nationalists and extremists, and that’s what they’re doing. So that’s point one,” said David Leopold, legal adviser to America’s Voice, a progressive immigration advocacy group
“Point two is this whole Republican primary that’s starting to unfold now. It’s going to be about immigration. It’s going to be about the border. It’s going to be about invasions and all kinds of extremist and, frankly, dangerous, anti-semitic, racist rhetoric.”
Trump’s proposal adds to a growing concern that GOP presidential candidates will compete for the most extreme positions on immigration — and will be pressured to act on them if elected.
Birthright citizenship in the United States is guaranteed by the 14th Amendment to the Constitution, which states that all people “born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens.
Proponents of ending birthright citizenship argue that undocumented immigrants are not “subject to the jurisdiction” of the United States, and therefore their children cannot receive citizenship by virtue of simply being born here.
While that position is not new, Trump has given it new life as arguably its highest-ranking proponent.
“We started to see it come back up about 10 years ago and it comes and goes, but it’s a reliable white nationalist talking point because it gets the base riled up,” Leopold said.
Yet Trump had ample opportunity to issue an executive order or otherwise officially challenge the prevailing interpretation of the 14th Amendment during his four years in office but chose not to.
His announcement that he would issue such an order on the first day of his second term came ahead of campaign stops in Iowa, where he shot barbs at his strongest opponent for the Republican nomination, Florida Gov. Ron DeSantis (R).
In a speech in New Hampshire, DeSantis made the case that he would be able to serve eight consecutive years if elected — giving him a better chance at implementing conservative policies — while Trump is limited to only one more four-year term.
“I’ve been watching DeSantis go out and say, ‘I’ve got eight years, it’s gonna be eight years,’ let me tell you something, right there you should vote against him,” Trump told the Westside Conservative Club in Urbandale, Iowa.
“It’ll take me six months to have it totally the way it was,” he added, referring to oil drilling and his border policies.
DeSantis shot back from another stop in New Hampshire, asking, “Why didn’t he do it in his first four years?”
Moving to the right on immigration, including birthright citizenship, is likely a winning strategy in a GOP primary, but polls are less clear on how a general electorate responds to the idea.
During his presidency, Trump twice brought up the issue publicly, once in a 2018 Axios interview and once shortly after his election loss to President Biden in 2020.
Surveys conducted after that interview largely found that Americans would respond to questions about birthright citizenship differently depending on how the question was framed, suggesting most respondents didn’t know who is currently eligible for birthright citizenship.
But the polls didn’t suggest any particular hunger among the general electorate to dive into the issue.
For immigration hawks, Trump’s unfulfilled flirtations with removing birthright citizenship draw a sharp contrast with Biden.
“I would say even less than zero chance [that Biden considers it],” said Ira Mehlman, a spokesman for the Federation for American Immigration Reform, a restrictionist group that advocates for drastic reductions in immigration.
Of Trump, Mehlman said, “Would he do it? Would he not do it? First he’d have to get nominated, second he’d have to win, third he’d have to be sworn in and then we will see if he does it or not.”
Under Trump’s proposal, he would issue an executive order reforming U.S. policy on citizenship so that the children of undocumented immigrants would no longer be considered to have been born “subject to the jurisdiction” of the United States.
Such an order would be immediately challenged in court.
Immigration restrictionists are itching for that fight, which would likely move through federal court, the Fifth Circuit and into the Supreme Court.
But even that strategy is a stretch. It’s unknowable whether the high court would take up such a case, or even whether the core issue in play would be the interpretation of the 14th Amendment.
Pro-immigration advocates, however, are concerned over the current composition of a Supreme Court that’s already shown a willingness to disrupt orthodoxy by overturning the half-century precedent of a federal right to abortion.
“So if it gets to the Supreme Court, you have a very conservative — some would say extremist — majority on that court. And who knows what they’ll do. I mean, look what they did with choice,” said Leopold
The precedent for birthright citizenship, however, is more than a century old and rooted in the foundational principles of civil rights in the United States.
The 14th Amendment was enacted after the Civil War, and its citizenship clause was intended to enfranchise former slaves into full citizenship.
At the time, the jurisdiction language was intended to exclude children born to foreign diplomats in the United States and members of Native American tribes.
The citizenship clause’s clearest test came in 1898 in the case of the United States vs. Kim Wong Ark, where the Supreme Court ruled that the child of foreign nationals legally in the United States was a citizen by birth, notwithstanding the Chinese Exclusion Act.
Restrictionists argue that undocumented immigrants are more akin to Native American tribes who were excluded in the original reading of the 14th Amendment.
Gerard Magliocca, a professor at the Indiana University School of Law who specializes in constitutional law, said that analogy is “flawed” in a 2008 article in the University of Pennsylvania Journal of Constitutional Law.
“First, the Framers of the Fourteenth Amendment viewed the ‘subject to the jurisdiction’ (or citizenship) clause as a way of enhancing tribal autonomy, not as a tool for limiting citizenship,” Magliocca wrote.
“As a result, the text does not have an exclusionary gloss that should be extended by construction.”
Secondly, Magliocca wrote the question of jurisdiction over undocumented immigrants is more akin to the question of jurisdiction over enemy invaders, though with key distinctions.
“Accordingly, the operative question is whether illegal aliens, like enemy occupiers, are beyond the actual authority of the United States. The answer to this constitutional question is no.”
While legal orthodoxy, history and public opinion largely favor the prevailing interpretation of the 14th Amendment’s citizenship clause, immigrant advocates are wary of a surprise twist that could upend the longstanding status quo.
“No. 1, I think the first point … that it’s such a harebrained idea, it’s never gonna go anywhere. I think that’s probably true, because even if you took it to an extremist court, you’d still have so many other issues to deal with, that it would make it almost impossible to – I just don’t see it happening,” Leopold said.
“Of course, I didn’t see Trump getting elected as happening either,” he added.
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